“I want my Country Back!”: Equality, Discrimination and Xenophobia after the Referendum

Diamond Ashiagbor*

We’ve been asked to offer some personal reflections, hopefully mediated by scholarly insight, on the UK referendum vote on EU membership. The quotation in my title comes from the rallying cry of the “Leave” campaign. The resonance of that slogan with the claim of Donald Trump to “Make America Great Again” is telling, as both imply a nostalgia, or rather a fantasy, for a lost state: one which is fully “sovereign”, unfettered by international or supranational obligations, freed from the constraints of a liberalised global trading regime whose rules it had been responsible for crafting, and – most significantly – almost entirely free from migrants.

Before the Vote

I voted “Remain” in the UK referendum for all the obvious reasons. Because I believe the EU, for all its faults and its challenges to the “embedded liberal bargain” which many Member States had been able to strike within their national economies, represents the best chance for cross-national solidarity and some defence against unfettered global capital. Because I didn’t want to see the most openly racist political campaign that I can recall since coming to the UK in 1975 as – yes – a migrant, succeed. Because I think the UK’s social and economic ills (the housing crisis, with housing-cost inflation outstripping stagnant wages, the lack of investment in social housing, the prevalence of a high-cost, high-turnover private rented sector; the underfunding of the National Health Service; vicious austerity policies; and the failure to alleviate the devastating social costs of the post-industrial decline) are the fault of elected national politicians not the fault of the EU or of immigrants. Because I would like to hope that the UK could remain a (relatively) open, reflective, socially progressive country.

 False Statements and First Impressions

 The key legislation governing eligibility to vote and the conduct of elections in the UK, consolidating and replacing earlier statutes, is the Representation of the People Act (RPA) 1983. The European Referendum Act 2015, in Section 4, made provision to incorporate most aspects of electoral law from the RPA 1983 into the referendum process. However, whilst Section 106 of the RPA makes it an offence to make false statements “for the purpose of affecting the return of any candidate at the election”, there was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote – i.e., where voters are not choosing between candidates, but between different answers to a question.

Opinions vary as to the merits of attempting legislatively to compel a form of “truth in political advertising” – e.g., the risks to freedom of speech and the risk of the judicialisation of politics versus the reality of the weakness of political sanctions and the weakness of the media role in generating informed debate. But it is certainly the case that the absence of any real guidance to voters during a febrile referendum campaign left voters, as Claus Offe notes in this paper, to their own individual means of will formation.

As it was, the Leave campaign blatantly lied about an imminent accession to the EU of Turkey, about the UK’s net contribution, about eurozone bailouts, about the mechanics of trade, about the NHS, about threats to national security, and, of course, about immigration. It was relatively silent about, or downplayed, the impact of a “Leave” vote on the markets, Sterling, the union and the retention of Scotland within that union, the border with the Republic of Ireland, the Gibraltar/Spain border, the frontier at Calais, the need to continue compliance with all EU regulations in order to retain membership of the single market, the ease and impact of negotiating trade deals with non-EU states, the status of UK citizens in other EU states, EU citizens in the UK, acquired rights, and the status of legislation transposed from EU law under the authority of the European Communities Act 1972. They were also dismissive of “experts”: economists, foreign policy analysts, legal scholars and practitioners, historians, other Europeans, and world leaders.

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Europe Unwell, yet Alive

Some Personal Reflections on the Brexit Referendum*

Christian Joerges, Berlin – Bremen

“What a disaster! Why did this happen and what does this mean?” – I had spent the days before the referendum in London, listened to a good number of intense, at times heated, debates – and left the “formerly United Kingdom” with both concerns and confidence – with the latter, however, remaining more weighty. The late evening news of 23 June 2016 confirmed my confidence. The awaking on the next morning, however, was all the more disturbing. Since then, we have all been continuously flooded with explanations, predictions, political signals. An essay-culture has been generated at turbo-speed both within the UK and “overseas”. There are highly informative high quality comments and blogs en masse which explore each and every aspect of post-Brexit constellations. The quality of these debates contrasts wonderfully with the emotionalised pre-Brexit “Leave” and “Remain” campaigns. We continentals learn about the complexities of the UK’s constitutional constellation, the ideational impact of historical experiences and traditions, the anxieties and anger of the dispossessed classes, and the downfall of the Labour party. These introspections are highly instructive for the non-British Union. They contribute to an improved awareness of Europe’s political and socio-economic diversity. Would it make sense to follow requests to join in these great and moving debates? Considering this query, I remembered Karl Valentin’s legendary barzelletta: “Everything has been said – but not by everybody.” Some uneasiness remained and grew, however. Within all these intellectual reflections on Brexit, I found little about the personal concerns which had generated my own spontaneous response to the result of the referendum. This is unsurprising in so far as my emotional confusion and conceptual irritations were that of a Doktorvater who had accompanied so many Ph.D students at the law department of the European University Institute in their research, and stayed in contact with a good number of them after they had embarked upon their academic careers. The students at the EUI come from all the Member States. For decades, the UK had welcomed them. British academia profited from this welcome culture – and so did our students. EUI graduates are, of course, a random sample of European citizens, but nevertheless one of exemplary importance. The EUI graduates have been Europeanised through their studies, through their co-operation with “foreigners” among their professors and fellow-students: they have become truly European academic citizens.

As a German professor, you are supposed to provide some theoretical framing for your intuitions and arguments. In the case in hand, a particularly ambitious framework suggests itself, namely, Jürgen Habermas’ theory of transnational democracy, which seeks to explain why the development of this new type of democracy is “Necessary and How it is Possible”. At the core of this explanation is Habermas’ theorem of the co-originality of the national and the European identities of the citizens of the EU, which he had first submitted in 2012. The innovative move that Habermas undertook is normatively fascinating. With his synthesising of national and European identities, the integration project becomes one of us, the citizens of the Union. Integration envisages our common future and a transnational political commitment. The anchoring of the project in the identities of Europe’s citizenry is a defence of its normative integrity, which seeks to liberate it from the merely economic or technocratic rational upon which the Monnet method of “integration by stealth” had relied. To appreciate the normative stringency and coherence of Habermas’ theorems, however, is not to believe in their political potential and socio-economic compatibility with the really existing state of the Union. The idea of a synthesis of national and European identities which would provide the basis for a transnational will-formation and solidarity contrasts sharply with the multitude of historical experiences, cultural traditions and political preferences, and, most importantly, with the ever deepening socio-economic diversity and the variety and institutionalised societal configurations which are generated by this background. The fragility of Habermas’ vision comes to the fore, albeit inadvertently, in  Habermas’ post-Brexit interview, published in DIE ZEIT on 9 July 2016 (see English translation): “It never entered my mind”, the philosopher submits in his reflections on the outcome of the referendum, “that populism would defeat capitalism in its country of origin. Given the existential importance of the banking sector for Great Britain and the media power and political clout of the City of London, it was unlikely that identity questions would prevail against interests.” What I find particularly remarkable here is Habermas’ apparent irritation. He not only recognises a mismatch between his visions and the actual conflict constellations as they were articulated in the “Remain” and “Leave” campaigns which was simply unforeseen in his theoretical framing of the development of a European transnational democracy, he is also prepared to draw drastic consequences. The “Development of the European Union into a Transnational Democracy”, he concludes, is only conceivable in a “properly functioning core Europe” composed of the members of the Eurozone – with the common currency operating as the empirical background of the reconciliation and merger of national and European identities. The tensions between Habermas’ normative vision and the political and socio-economic divergence of the Union in general, and of the eurozone in particular, seem as obvious as they are irresolvable within the Habermasian conceptualisation of the development of the integration project. Decades ago, in much more comforting times, Wolfgang Streeck criticised Habermas’ plea for a European constitution (see English translation) as all too voluntaristic. This seems more valid than ever.

This critique of Habermas’ visions is not meant to downplay the deep impact of the integration process on our identities as European citizens. Even the more mundane implications and effects can be valuable and are politically significant. To start with the seemingly mundane: European freedoms have granted us much more than the right to travel freely, to go shopping abroad, to profit from price differentials and to do all this without constantly changing our money. We, the academics, have instead been exposed to a host of new experiences, could learn from the encounters with “the others”, their academic cultures and practices; we could become aware of the specifics of our own traditions, contrast them with our new experiences, re-evaluate what we had grown up with and re-orient our work. These are gains and benefits which are highly contingent, often inextricably linked with periods of insecurity and recurring anxieties about individual futures. The Europeanisation of our identities neither occurred uniformly, nor can we easily identify their accumulated societal benefits and burdens. How will Brexit impact on what has happened to us and what has been accomplished by the concerned academic communities. Can the UK count on protective effects for their own young academics? Should the continentals be happy that they no longer subsidise the education of the British Isles? Should they be grateful for the diminution of the brain drain that they have endured thanks to the openness of British academia? Is it at all adequate to evaluate the effects of Brexit in such terms? What we can be sure of is that Brexit is also exposing us to cultural shocks and effects on academic biographies which even hard core economic analysts will hesitate to decipher. We should also be on guard for the ensuing collateral political damages. Threats which individuals feel exposed to – whether rightly or wrongly = have the potential to contaminate social relations. How confident can we be about the resistance of Europeanised academic communities against narrow-minded re-nationalisation, the rebirth of animosities and the return of stereotypes?

The latter considerations concern our privileged status. The Europeanisation of Europe’s citizens did not occur uniformly, but is characterised by deep asymmetries. Neil Fligstein, in his seminal, if widely neglected, study, estimates that only a small élite of 10-15 per cent has derived considerable gains from the integration process, whereas a middle group of 40-50 per cent has profited only occasionally, and a final set of 40-50 per cent of Europeans experience Europeanisation as an existential threat. Fligstein has correlated these findings with the differentiated support of the Integration project. In the light of his figures and findings, the erosion of the Union’s legitimacy, the rise of European populism, and the outcome of the British referendum do not come as such a big surprise. We, the European academics in general, and those affiliated with the European University Institute in particular, are certainly among the cluster of European élites who have, on the whole, profited very considerably. But how stable is our privileged status? How firmly established are the values which the Europeanisation of our academic lives has promoted? How autonomous is the academic system in a political environment which changes dramatically? Will we be sensitive to the threats of Brexit and strong enough to build up resistance?

These queries reach beyond the immediate concerns which the essays assembled in this working paper address. They mirror a great variety of individual biographies, political views and personal ambitions. What they have in common is the sorrow about European cultural accomplishments, which are not merely economic benefits but cultural enrichments experienced and realised in the encounters with and recognition of European citizens from other nations. We hope to raise awareness for processes which are looming with a disquieting potential.


*     This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available here. The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

The problems associated with associate citizenship of the EU

Dr Adrienne Yongyong

It is fair to say that since June 23, 2016 – the day the UK voted to leave the EU –the 48.1% of the electorate that voted to remain have voiced some concerns. Indeed, many of the concerns expressed by this minority are shared by EU citizens residing in the UK who were unable to vote in the referendum, with none more important than the idea of rights to free movement within the EU. The concept which grants rights such as residency, entry and exit from the territory of EU Member States without prejudice is EU citizenship. Article 45 TFEU also encompasses some of these same rights, but applies only to workers. In contrast, EU citizenship status, enshrined in Article 20 TFEU, is granted to all Member State nationals by virtue of their Member State nationality. As made clear in that provision, EU citizenship does not replace nationality but is additional to it. This status was first introduced 24 years ago, in the Maastricht Treaty 1992. The most recent study in 2012 showed that a third of the population of foreign citizens in EU Member States are individuals from other EU Member States, indicative of large volume of people who have made use of their rights to free movement.

Associate citizenship of the EU

With the vote to leave the EU and the subsequent process of withdrawal that the UK must now undergo, it is clear that EU citizenship will no longer be a status accorded to British nationals. Though nothing is set in stone as yet, this much is fairly clear. However, this would mean British nationals can no longer enjoy the rights to free movement and residency that are currently enjoyed by all EU citizens. Plainly, this is one of the consequences that Britain must be prepared to accept as it negotiates its exit in the coming years. Unsurprisingly, there have been voices of discontent from sections of the “Remain” electorate about the unilateral “stripping” of their EU citizenship and calls for some consideration of a voluntary citizenship of the EU for British citizens. Most recently, this has crystallised in the form of Amendment 882, brought before the European Parliament by MEP Charles Goerens, to offer citizens from a former Member State what would be known as “associate citizenship”. The Amendment offers a new regime for discussion amongst high level EU officials. This is the most thoroughly considered of all the suggestions thus far on any alternative arrangement for British citizens post-Brexit. In contrast, other suggestions concerning the retention of citizenship rights after Brexit have not been as formal as Amendment 882 and are also less specific about solutions to the problem of losing of EU citizenship status after Brexit. The proposal here is for an opt-in with payment of a membership fee; in return, individuals would have some of the rights guaranteed by the Treaty under Articles 21-22 TFEU: to free movement, to residency, and to vote and stand for election in the European Parliament. The right to consular protection, petitioning the European Parliament, recourse to the Ombudsman and right to communication from EU institutions in the citizens’ own language are not included. The effect therefore, would be retention of a form of citizenship of the EU.

It is clear where this sentiment is coming from. While the referendum was won by “Leave”, over 16 million people in the UK did vote to remain in the EU. It is assumed that these voters would have wanted to retain the benefits of being part of the supranational entity, including EU citizenship and its associated rights. Furthermore, EU citizenship has been granted to the entire British population and these individuals feel that they did not choose for it to be taken away from them. Indeed, as a right that impacts the majority of the population in the EU, its loss will be felt by many. Speculation is already rife about the visa requirements for British citizens in the EU after Brexit. Therefore, the outcry arguing in favour of a way to retain EU citizenship and its requisite rights is unsurprising. However, there is equal outcry about associate citizenship of the EU as a solution.

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Skating on Thin Ice: The European Commission challenges the governance rules of an international sports association as being incompatible with European antitrust rules

By Peter Alexiadis and Pablo Figueroa[1]

The recent announcement by the European Commission (“the Commission”) that it is actively looking into the compatibility of the disciplinary measures exacted by the International Skating Union (“ISU”) with competition rules reminds us yet again of that there are few elements of modern life that are exempt from the scope of EU competition rules.  The approach being undertaken by the Commission in the ISU case constitutes a logical extension of the recent interest shown by National Competition Authorities within the EU on the compatibility of governance rules of sports organisations with national and EU competition law.[2]

I.                        The Facts

Based in Lausanne, Switzerland, the ISU is the only body recognised by the International Olympic Committee (“IOC”) with the responsibility of administering the sports of ice figure skating and speed skating. In turn, its members are the various national ice-skating associations.

The Commission had initiated proceedings in relation to ISU’s eligibility rules in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert (gold medal winner at the 2010 Winter Olympics) and Niels Kerstholt.[3]

After an extremely short formal investigation of less than a year, the Commission has announced that the rules imposed by the ISU might be in contravention of the EU prohibition on anti-competitive agreements under Article 101 TFEU.[4]

More precisely, the Commission has informed the ISU of its preliminary view that its rules, under which athletes face severe penalties if they participate in speed skating events which have not been authorised by ISU, might infringe EU competition rules. Competition Commissioner Margrethe Vestager has indicated that the Commission’s concerns stem from the belief “that the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU’s control over speed skating. The ISU now has the opportunity to reply to our concerns”.

These accusations are outlined in a Statement of Objections addressed to the ISU, a document which informs the parties concerned of the competition allegations raised against them and which foresees that investigated entities can reply in writing and also request an Oral Hearing.  While the issuance of a Statement of Objections does not prejudge the outcome of the investigation, it is relatively rare that the Commission backs away from its claims.

According to a blog post by the Complainants’ counsel, which includes a twitter exchange between a skate complainant and Commissioner Vestager,[5] the complaint is based on the ISU’s intention to declare skaters as “persona non grata” where they participate in events organised by Icederby International, a private entity.  Moreover, the Complainants contended that the ISU Eligibility Rules rendered ineligible a person skating or officiating in an event not endorsed by ISU and/or its Members (i.e., the individual national associations) from participating in ISU activities and competitions.[6]  According to the Complainant’s counsel, this sanction apparently applies not only to the skaters, but also extends to coaches, trainers, doctors, team attendants, team officials, judges, referees and even volunteers.

By way of rebuttal, the ISU noted in a recent press release that independent organisers can establish international tournaments on the ISU calendar, and that Icederby, an organisation which initiated the complaint that triggered the Commission’s investigation via the two speed skaters in question, recently received ISU authorisation to co-run an event.[7]

The facts of the ISU case are not entirely dissimilar to those of Fédération Internationale de l’Automobile (FIA) in the late 1990s.  In that case, the Commission closed its investigation, apparently after the FIA agreed to refrain from using its regulatory powers in relation to international motor racing in a manner that would mean that competing events were forced out of the market.[8] Continue reading

The Miller judgment: Why the Government should argue that Article 50 is reversible

Prof Phil Syrpissyrpis

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.

This strong statement of the rights of Parliament ought, in a rational world, to appeal to the instincts of leave supporters. At least part of the point of voting to leave the European Union was to ‘take back control’ from unelected bureaucrats in Brussels, and to return that power to the UK. In the same way as ‘we’ want to have control over the decision-making process in the EU, ‘we’ might also want to have some control over the actions of our (at least arguably, in this instance, also unelected) Government. The High Court’s judgment amounts to the simple assertion that, according to our Constitution, ‘we’ exercise this control via Parliament (and not, for example, via a ‘mandate’ given to the Crown by the result of the referendum (see [105]-[106])). The reaction of many on the leave side – and the Daily Mail deserves a particular mention for Friday’s front page – is a sad indictment of the state of debate in this country.

Unless the Government changes its argument when the decision is appealed (and the hearing is due in early December), the Supreme Court, too, is likely to decide that, according to the UK’s own constitutional requirements, the decision to trigger Article 50 is for Parliament, not the Government. Already, there is fevered speculation surrounding the likely reactions in Government, in the Commons and the Lords, and the devolved assemblies.

And yet, the judgment proceeds on the basis of ‘common ground’ between the parties that ‘a notice under Article 50(2) cannot be withdrawn, once it is given’ [10]. This, it turns out, is significant for the High Court. The reason why the Crown cannot give notice under Article 50, is that domestic law rights will, inexorably, be affected by the decision. In various parts of the judgment, the decision to give notice under Article 50 is treated as equivalent to the decision to withdraw from the EU.

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High Court Brexit judgment: do all roads lead to Luxembourg?

Albert Sanchez Graellsbalanced-scale

This is a lightly edited version of a post that first appeared on the How to Crack a Nut blog. 

The High Court has now issued its Judgment in the dispute about the UK Parliament’s necessary approval of a Brexit notification–see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court’s Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

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The remarkable Government case in the Art 50 litigation

Prof. Piet Eeckhoutpiet-eeckhout

[This piece was originally posted on the London-Brussels One-Way or Return blog and is re-posted here with kind permission.]

It is now about a week since the hearings concluded in the litigation, before the High Court, on whether the UK Government can trigger Art 50 TEU, or whether instead an Act of Parliament is required. The transcript of the hearing makes for fascinating reading. We will have to see what the judges decide, but I cannot refrain from making the point that the Government’s case is weak. Government lawyers are of course confined in what they can argue, and what not, by what their client, i.e. politics, wants. It seems like the client has not dealt them a good hand. For the Government’s case is built around a set of propositions which are in huge tension with one another. They are:

  • The 2015 Referendum Act, which organised the referendum, did not confer on the Government the power to trigger Art 50. At most, it did not disturb a pre-existing power (the Royal Prerogative).
  • The Art 50 notification cannot be revoked. In the words of Lord Pannick QC, once the bullet has left the gun it will definitely hit the target: exit after 2 years, or at such time as the withdrawal agreement enters into force.
  • The Government can make treaties and withdraw from them. But for there to be effect in domestic law of either the making a treaty, or withdrawing from it, Parliament must be involved. This last proposition is confirmed in the following, fascinating exchange.

“THE LORD CHIEF JUSTICE: I think, sorry, if I understood my Lord’s question, you accept that if the government wanted to amend the treaties or withdraw from them so that effect was given to withdrawal in domestic law, there would have to be an Act of Parliament.

THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: Whether it is amending or withdrawing, it doesn’t make any difference.

         THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: I think that was the point. It is the effectiveness in domestic law. There is no difference between amending and withdrawing, you have to have a statute?

THE ATTORNEY-GENERAL: Yes, in order for there to be an effect in domestic law we accept that Parliament’s involvement would be necessary.”

At the end of this exchange the Attorney-General confirms that Parliament’s involvement would be necessary to give domestic effect to Brexit. In other words, the Government could negotiate a withdrawal agreement, but such an agreement could take effect in UK law (much like the conclusion of a new treaty) only if Parliament legislated to such effect. But this is contradicted by proposition (2). That proposition accepts that, once the trigger has been pulled, withdrawal is outside the Government’s control. It will happen, whether the Parliament legislates or not. Crucially, this includes the effect in domestic law. The UK cannot, in its domestic law, keep all extinguished EU membership rights and obligations alive. That is so, quite simply, because at least some of those rights and obligations require membership, and the cooperation of the EU institutions and other Member States. Just one example: UK citizens will no longer be able to vote for the European Parliament, after withdrawal, and it is wholly irrelevant whether the UK Parliament leaves such a right on its statute book or not.

In the Government’s case withdrawal is therefore completely different from the law and practice of negotiating and approving new EU Treaties (or amendments to them) – contrary to what it claims. That law and practice is such that a new Treaty cannot enter into force unless it has been ratified by each member State in accordance with its constitutional requirements (i.e. approved by its parliament): see Art 48 TEU (there is a simplified revision procedure, but even that allows national parliaments to block). The logic is that the EU does not finally agree new rights and obligations until all national parliaments have approved them, and incorporated them into domestic law. So the logic of the prerogative not interfering with domestic legislation is fully respected for the negotiation of new treaties. But for withdrawal the Attorney General effectively argues the reverse: the UK Government can decide on withdrawal, including its inescapable domestic effect, and it doesn’t need Parliament’s approval.

Proposition (1) is relevant because it means that the Government is not arguing that the 2015 Referendum Act conferred a power on it to give effect to a negative referendum result, by triggering Art 50. So Parliament never authorised the triggering, and it cannot, once the bullet has left, undo withdrawal, either at the international plane or at the domestic level.

I cannot see how these three propositions could be reconciled. The most remarkable one, from the perspective of the Government’s case, is the second. If the Government argued that the Brexit bullet can be pulled back to the gun – in other words that the UK Government could always revoke the notification – there would be a much stronger case for the exercise of the prerogative, as many have noted. Parliament could then, at any stage of the negotiations, force the Government to withdraw from withdrawal. But for political reasons the Government doesn’t argue this. The big question looming over the litigation is whether the courts can simply assume that the Art 50 notification is irrevocable, when that point is so critical.

Arguments in the referendum challenge now available

Rosalind English

This post originally appeared on the UK Human Rights Blog, and is reproduced here with permission and thanks.

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control. Continue reading

The TTIP Negotiations Innovations: On Legal Reasons for Cheer

Elaine FaheyDr Elaine Fahey

By now, the Transatlantic Trade and Investment (TTIP) negotiations have undergone a marathon 14 rounds of negotiations after 36 months of talks, despite Brexit and the tumultuous US presidential elections standing in the back drop. The political mood on either side of the Atlantic is still challenging to say the least. And after EU-Canada Comprehensive Economic Trade Agreement (CETA) being proposed for recently as a mixed agreement meaning that many national parliaments will vote on it (not being an exclusive EU only agreement as anticipated), the legal context of free trade with Europe just got trickier.

The TTIP negotiations have generated fears about the transfer of authority to a new living entity as a form of global governance. Yet by opting for public institutions and institutionalisation within TTIP, there is a shift towards transparency and the ‘governability’ of global governance. Even if it fails – and there is a reasonable chance that it may not survive the US elections – there are a whole host of positives to be found within the TTIP negotiations. They can be viewed as innovative attempts to right the wrongs of global governance. They may well inspire future developments and are worthy of a brief analysis.

This post focusses upon the latest developments as to TTIP’s institutions in the latest texts released in mid-July.

On the institutional side of things, the EU’s most recent proposal of 14 July 2016 has undergone some considerable changes to appease European critics. The latest TTIP EU-proposed text still features a Joint Committee, comprised of the US Trade Representative and an EU Commission at the apex of TTIPS’s Regulatory Cooperation. The Committee would possess considerable supervisory and legally salient interpretive powers about TTIP’s proposed 30 chapters. But is more executive than supranational in nature and this matters to the US. The executive dominance of the EU’s proposed Institutional chapter as of July 2016  is apparent (Article X. 2) – because it would provide for powers to supervise and guide activities, adopt rules, adopt interpretations about the agreement and act subject to transparency and openness principles- between levels of Government essentially. The Joint Committee would principally work with Specialised Committees (e.g. market access, services …) and Working Groups but can be perceived as a great empowerment of the European Commission, arguably moving far beyond its institutional and constitutional functions.

However, it is importantly now heavily ‘tempered’ by a number of other bodies, actors and entities that align with more European than American ideals.  Above all, binding duties of cooperation and participation along wide transparency and equal access are ‘latecomers’ to the negotiations – and heavily Americanised ideas of Administrative law (e.g. ‘notice and comment’). They are important in so far as they mitigate critique of earlier drafts as to closed-decision-making practices. Thus firstly, the Joint Committee is ‘tempered’ by a Regulators Forum which would discuss regulatory cooperation between regulators, holding public sessions. The Transatlantic Legislators Dialogue (TLD) next envisaged within the new text would be comprised of EU and US parliamentarians and has already been part of several decades of EU-US relations. Nonetheless, although lacking any significant powers, as has always been the case with the TLD, it could further foster the parliamentary dimension of cooperation. In the text, the Civil Society forum would also be provided for to ensure a balance number of interests is displayed, along with a Domestic Advisory Body independent representatives of civil society, whose participation is to be facilitated. Although a lot of functional overlap is apparent from this version of the text, it is an important state of affairs. For example, ironically, the harshest criticism of the latest draft of institutional set up is that it contains too much participation or too many bodies and actors – and this criticism comes directly from the TTIP’s institutionalised Advisory Body, itself supposed to represent civil society. Previous version of the text failed to provide adequate assurances concerning the place of parliamentary sovereignty and civil society. And so on balance, on can see its virtues emerging as a broadly open and truly participatory idea of transnational cooperation with considerable control and input given to elected representatives. Continue reading

INIS Free ?

Aidan O’Neill

In his poem The Second Coming written in 1919 at a time of political and social ferment across Europe and an earlier constitutional breakdown within the United Kingdom, WB Yeats (that great Anglo-Irishman, a descendant and representative of “no petty people”) wrote the following lines:

… Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

Surely some revelation is at hand ….

Against that apocalyptic vision, it is of some interest to note a recent op-ed piece in the Irish Times, in which the Irish writer Fintan O’Toole has made the intriguing suggestion that one possible political response to the further break-down of our constitutional order which the Brexit vote heralds, might be for a complete re-configuration of the nations within the Anglo Celtic Archipelago/Atlantic Isles.  He suggests that Scotland and Northern Ireland might leave (and so dissolve) the United Kingdom, and join Ireland in some form of, a yet to be worked out, union.

Historic precedent for a Scots-Irish union ?

It is sometimes said to be a characteristic of the Scots and Irish that (like the Bourbons) that they have learned nothing and forgotten nothing.   Their role in a Tolkien saga might be that of “The Grudge Bearers”.

In that spirit, and taking the approach of la longue durée to Fintan O’Toole’s suggestion, we might find some historic precedent for setting up a Scottish-Irish Union (sans et contre l’Angleterre) in the campaign of Edward Bruce, younger brother of and then heir to Robert Bruce, who in the year after his brother’s 1314 victory at Bannockburn, sailed to Ireland from Scotland with a sizeable fighting force and there allied with native Irish fighting against Anglo-Norman magnates owing fealty to the English crown, and had himself proclaimed High King of Ireland.

This is attested to in a remarkable document of 1317 which the native Irish princes (led by Donal O’Neill, king of Cenel Eoghain or Tyrone) addressed to the Avignon Pope John XXII through two of his papal nuncios who were then in England attempting to broker a post-Bannockburn peace between Edward II of England and Robert Bruce, King of Scots.   This Remonstrance notes in part as follows:

“[O]n account of the injustice of the kings of England and their wicked ministers and the constant treachery of the English of mixed race, who, by the ordinance of the Roman curia, were bound to rule our nation with justice and moderation and have set themselves wickedly to destroy it; and in order to shake off the hard and intolerable yoke of their slavery and to recover our native liberty, which for a time through them we lost, we are compelled to wage deadly war with them, aforesaid, preferring under stress of necessity to put ourselves like men to the trial of war in defence of our right, rather than to bear like women their atrocious outrages.

And that we may be able to attain our purpose more speedily and fitly in this respect, we call to our help and assistance Edward Bruce, illustrious earl of Carrick, brother of Robert by the grace of God most illustrious king of the Scots, who is sprung from our noblest ancestors.

And as it is free to anyone to renounce his right and transfer it to another, all the right which is publicly known to pertain to us in the said kingdom as its true heirs, we have given and granted to him by our letters patent, and in order that he may do therein judgment and justice and equity which through default of the prince Edward II the King of England have utterly failed therein, we have unanimously established and set Edward Bruce up as our king and lord in our kingdom aforesaid, for in our judgment and the common judgment of men he is pious and prudent, humble and chaste, exceedingly temperate, in all things sedate and moderate, and possessing power (God on high be praised) to snatch us mightily from the house of bondage with the help of God and our own justice, and very willing to render to everyone what is due to him of right, and above all is ready to restore entirely to the Church in Ireland the possessions and liberties of which she was damnably despoiled, and he intends to grant greater liberties than ever otherwise she has been wont to have.

May it please you therefore, most Holy Father, for the sake of justice and general peace mercifully to approve what we have done as regards our said lord and king Edward Bruce, forbidding the King of England and our aforesaid adversaries henceforward to molest us, or at least be pleased to render us with fitting favour our due complement of justice in respect of them.

For know, our revered Father, that besides the kings of lesser Scotia who all drew the source of their blood from our greater Scotia, retaining to some extent our language and habits, a hundred and ninety seven kings of our blood have reigned over the whole island of Ireland.”

The Avignon Papacy neither recognised Edward Bruce’s claim to the High Kingship of Ireland, nor did it respond favourably to the Irish princes’ Remonstrance.  In October 1318 the Scots-Irish army under Edward Bruce was defeated by the Anglo-Norman forces of Edward II.   Edward Bruce was killed, his body quartered and sent throughout Ireland and his head delivered to King Edward II. Continue reading